Citation Nr: 0336907
Decision Date: 12/31/03 Archive Date: 01/07/04
DOCKET NO. 00-21 344 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in Buffalo,
New York
THE ISSUES
1. Entitlement to service connection for joint pain due to
undiagnosed illness.
2. Entitlement to service connection for chronic fatigue due
to undiagnosed illness.
3. Entitlement to service connection for memory loss and
difficulty concentrating due to undiagnosed illness.
4. Entitlement to service connection for sleep difficulties
due to undiagnosed illness.
5. Entitlement to service connection for chest pain due to
undiagnosed illness.
6. Entitlement to service connection for a thyroid disorder
due to undiagnosed illness.
REPRESENTATION
Appellant represented by: New York State Division of
Veterans' Affairs
ATTORNEY FOR THE BOARD
D. Schechter, Counsel
INTRODUCTION
The veteran had active service from February 1985 to May
1991.
This matter comes before the Board of Veterans' Appeals
(Board) on appeal from a January 2000 rating decision by the
Department of Veterans Affairs (VA) Regional Office (RO) in
Buffalo, New York, which, in pertinent part, denied service
connection for joint pain, chronic fatigue, memory loss,
difficulty concentrating, sleep difficulties, chest pain, and
a thyroid disorder, all claimed as manifestations of
undiagnosed illness.
The Board remanded these claims in August 2001.
Thereafter, service connection for an irritable bowel
syndrome, and a back disability, with disc bulge at L4-L5,
was granted in an August 2003 rating decision. These are
full grants for those claims. Thus the claims of entitlement
to service connection for a gastrointestinal disorder and a
back disability, as remanded by the Board in August 2001,
have been fully satisfied.
This appeal is REMANDED, in part, to the RO via the Appeals
Management Center (AMC), in Washington, DC. Consistent with
the instructions below VA will notify you of the further
action required on your part.
FINDING OF FACT
Thyroid symptoms are shown to be due to a diagnosable entity,
and not due to an undiagnosed illness.
CONCLUSION OF LAW
A thyroid condition due to undiagnosed illness was not
incurred in active military duty. 38 U.S.C.A. §§ 1110, 1117,
1131, 5103, 5103A, 5107 (West 2002); 38 C.F.R. §§ 3.102,
3.159, 3.317, 3.326 (2003).
REASONS AND BASES FOR FINDING AND CONCLUSION
VCAA Analysis
In November 2000, the Veterans Claims Assistance Act of 2000
was signed into law. See 38 U.S.C.A. §§ 5100, 5102, 5103,
5103A, 5106, 5107, 5126 (West 2002). Following the RO's
determinations of the veteran's claims, VA issued regulations
implementing the Veterans Claims Assistance Act. 38 C.F.R.
§§ 3.102, 3.156(a), 3.159, 3.326 (2003).
VA has a duty to notify the veteran of any information and
evidence needed to substantiate and complete a claim, notice
of what part of that evidence is to be provided by the
claimant, and notice of what part of that evidence VA will
attempt to obtain for the claimant. 38 U.S.C.A. § 5103(a); 38
C.F.R. § 3.159(b)(1); Quartuccio v. Principi, 16 Vet. App.
183, 187 (2002). In this case, VA notified the claimant of
this information by a VCAA letter dated in November 2001, as
well as by an August 2003 supplemental statement of the case.
In this decision the Board holds, as a matter of law, that
service connection for a thyroid disorder due to undiagnosed
illness is not warranted. There is no reasonable possibility
of a dispute of the evidence. As discussed below, the
veteran's thyroid disorder has been diagnosed and treated as
hypothyroidism. Hence, it is not due to an "undiagnosed"
illness.
There is no reasonable possibility that the thyroid disorder
presented may be stripped of its diagnosis by the
introduction of additional evidence. Hence, additional
factual development will not assist the veteran in his claim,
and additional development pursuant to the VCAA is not
required. Quartuccio.
Development requested by the Board in its August 2001 remand
was completed, including obtaining service personnel records
verifying Persian Gulf War service, and obtaining VA
examinations. Stegall v. West, 11 Vet. App. 268 (1998).
Service Connection Claim based on Undiagnosed Illness
Service connection may be granted under the provisions of 38
U.S.C.A. § 1117 and 38 C.F.R. § 3.317 for undiagnosed chronic
conditions linked to a veteran's participation in the Persian
Gulf War. A prerequisite for the awarding of service
connection under this law is the presentation of sufficient
and competent proof that that the veteran has manifested one
or more signs or symptoms of an illness, to a compensable
degree, which by history, physical examination, and
laboratory tests, cannot be attributed to a known clinical
diagnosis and that the chronic disability is the result of
the undiagnosed illness. 38 U.S.C.A. § 1117; 38 C.F.R. §
3.317.
VA treatment records and examinations have reported
complaints of loss of energy and associated symptoms and
laboratory findings of low thyroid function. Nevertheless,
these symptoms have led to the listed diagnosis in VA
treatment records of hypothyroidism, which has been
effectively treated with Synthroid.
Upon VA examination for compensation purposes in August 2002,
the examiner noted that the veteran's thyroid disorder was
diagnosed as hypothyroidism and treated with Synthroid
management. With ongoing Synthroid treatment, the veteran
was currently clinically euthyroid (asymptomatic as related
to thyroid function).
Hence, there appears from the recent VA examination report
and past medical records to be no basis for a conclusion
other than that the veteran's thyroid disorder is
hypothyroidism. Accordingly, the disorder is not
undiagnosed. As there is no evidence of chronic thyroid
symptoms that are due to an undiagnosed illness, service
connection under 38 U.S.C.A. § 1117 is not warranted.
Although the veteran's statements are arguably competent to
establish the occurrence of an injury, they are not competent
evidence to establish the etiology of his current complaints.
Medical diagnosis and causation involve questions that are
beyond the range of common experience and common knowledge,
and require the special knowledge and experience of a trained
medical professional. Hence, while the veteran may allege
that he has a thyroid disorder due to undiagnosed illness
related to service, his mere statements cannot serve to rebut
the medical evidence within the claims folder inclusive of
the diagnosis of hypothyroidism. Because he is not a
physician, the veteran is not competent to make a
determination that his current complaints are the result of
any incident or pain he experienced in service. Espiritu v.
Derwinski, 2 Vet. App. 492, 495 (1992).
ORDER
Service connection for a thyroid disorder due to undiagnosed
illness is denied.
REMAND
As noted above, the Veterans Claims Assistance Act of 2000
(VCAA) prescribes VA duties to notify the claimant of the
evidence needed to substantiate a claim, notice of the
evidence VA will obtain, and notice of the claimant's
responsibilities with regard to what evidence he must submit.
It also prescribes VA duties to help a claimant obtain
relevant evidence. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A,
5106, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a),
3.159, 3.326 (2003).
Initially, the Board notes that 38 C.F.R. § 3.159(b)(1), was
invalidated by the United States Court of Appeals for the
Federal Circuit. Paralyzed Veterans of America, et al. v.
Secretary of Veterans Affairs, 345 F.3d 1334 (Fed. Cir. 2003)
(PVA). The offending language in the regulation suggested
that an appellant must respond to a VCAA notice within 30
days, but if no response was received VA could proceed to a
decision. Notably, 38 U.S.C.A. § 5103(a), requires that the
appellant be provided a year to respond. As the appellant
was not notified in the RO's November 2001 letter of the
proper period of time to respond correct notice must be
given.
Remand is also necessary for the veteran's claims of
entitlement to service connection for joint pain, chronic
fatigue, memory loss, difficulty concentrating, sleep
difficulties and chest pain, all claimed as due to
undiagnosed illness, in order to obtain additional relevant
evidence as pertaining to these conditions. Specifically, at
August 2002 VA examinations an examiner found that the
veteran's claimed lack of concentration, memory loss and
chronic fatigue were likely psychosomatic in nature.
Similarly, August 2002 VA examiners found the veteran to have
insignificant or negligible symptoms attributable to
dizziness and chest pain, no current symptoms attributable to
his claimed sleep difficulties, and no objective findings to
support his claim of joint pain. As noted above, claims
based on undiagnosed illness must be supported by
manifestations that at some time became disabling to a degree
of 10 percent or more. 38 C.F.R. § 3.317(a)(1)(i). Hence,
these minimal findings cannot support the veteran's claims.
Pursuant to the VCAA, however, the veteran must be afforded
specific notice of the evidence that has been obtained by VA
and specific notice of the evidence he needs to obtain in
furtherance of his claims. Quartuccio. The veteran has not
been provided this notice in a Quartuccio compliant manner.
Hence, a remand is necessary to inform the veteran of the
need for additional medical evidence of current, disabling
undiagnosed conditions, to support his remanded claims, and
notice who will secure the evidence necessary to substantiate
the claim.
Accordingly, the Board finds that the following additional
development is warranted:
1. The RO should review the claims
file and ensure that all additional
evidentiary development action
required by the VCAA, and
implementing regulations is
completed. The RO should
specifically:
A. Notify the veteran of the
specific evidence necessary to
substantiate his claims of
entitlement to service connection for
joint pain, chronic fatigue, memory
loss, difficulty concentrating, sleep
difficulties and chest pain due to
undiagnosed illness under 38 U.S.C.A.
§ 1117 and 38 C.F.R. § 3.317. The RO
should emphasize to the veteran that
he is ultimately responsible to
provide the necessary evidence. The
RO should also advise that VA will
make efforts to obtain relevant
evidence, such as VA and non-VA
medical records, or other records
from government agencies, if he
identifies the custodians thereof.
VA must notify the appellant of
evidence he identified that could not
be obtained so that he may obtain the
evidence himself and submit it.
B. The RO should inform the veteran
that he has one year to submit
evidence needed to substantiate his
claim, or to identify for VA the
custodians of such evidence so that
VA may attempt to obtain it. The RO
must inform him that his appeal will
remain in abeyance for one year or
until he indicates in writing that
there is no additional evidence he
wishes to have considered, and that
he waives any remaining time provided
by 38 U.S.C.A. § 5103(a). PVA.
2. The veteran should be instructed
to identify any medical records, VA
or private, which may be pertinent to
his remanded claims but have yet to
be associated with the claims folder.
He should also provide contact
information and necessary
authorizations and releases to permit
VA to obtain treatment records or
examination reports not yet
associated with the claims folder.
All not-yet-obtained VA treatment
records, including records dated
since August 2002, must also be
obtained for inclusion in the claims
file. Any additional pertinent
treatment records from Pedro G.
Joven, M.D., of Cheektowaga, New
York, should also be obtained with
the veteran's authorization.
The RO should attempt to obtain any
indicated records. The RO should
inform the veteran of the outcome of
each records request. If records are
not obtained from any private source
requested, the RO must notify the
veteran that he is responsible for
securing these records if he desires
VA to consider them. All records and
responses received should be
associated with the claims folder.
3. Thereafter, and following any
other appropriate development, the RO
should readjudicate the remanded
claims. If the determinations remain
to any extent adverse to the veteran,
he and his representative must be
provided a supplemental statement of
the case which includes a summary of
additional evidence submitted, any
additional applicable laws and
regulations, and the reasons for the
decisions. They should then be
afforded the applicable time to
respond. Particular care and
attention must be afforded to
ensuring that the veteran has been
provided complete notice of what VA
will do and what the claimant must
do. Quartuccio.
The appellant has the right to submit additional evidence and
argument on the matter or matters the Board has remanded to
the regional office. Kutscherousky v. West, 12 Vet. App. 369
(1999).
______________________________________________
DEREK R. BROWN
Veterans Law Judge, Board of Veterans' Appeals
Department of Veterans Affairs
YOUR RIGHTS TO APPEAL OUR DECISION
The attached decision by the Board of Veterans' Appeals (BVA or Board) is
the final decision for all issues addressed in the "Order" section of the
decision. The Board may also choose to remand an issue or issues to the
local VA office for additional development. If the Board did this in your
case, then a "Remand" section follows the "Order." However, you cannot
appeal an issue remanded to the local VA office because a remand is not a
final decision. The advice below on how to appeal a claim applies only to
issues that were allowed, denied, or dismissed in the "Order."
If you are satisfied with the outcome of your appeal, you do not need to do
anything. We will return your file to your local VA office to implement
the BVA's decision. However, if you are not satisfied with the Board's
decision on any or all of the issues allowed, denied, or dismissed, you
have the following options, which are listed in no particular order of
importance:
? Appeal to the United States Court of Appeals for Veterans Claims
(Court)
? File with the Board a motion for reconsideration of this decision
? File with the Board a motion to vacate this decision
? File with the Board a motion for revision of this decision based on
clear and unmistakable error.
Although it would not affect this BVA decision, you may choose to also:
? Reopen your claim at the local VA office by submitting new and
material evidence.
There is no time limit for filing a motion for reconsideration, a motion to
vacate, or a motion for revision based on clear and unmistakable error with
the Board, or a claim to reopen at the local VA office. None of these
things is mutually exclusive - you can do all five things at the same time
if you wish. However, if you file a Notice of Appeal with the Court and a
motion with the Board at the same time, this may delay your case because of
jurisdictional conflicts. If you file a Notice of Appeal with the Court
before you file a motion with the BVA, the BVA will not be able to consider
your motion without the Court's permission.
How long do I have to start my appeal to the Court? You have 120 days from
the date this decision was mailed to you (as shown on the first page of
this decision) to file a Notice of Appeal with the United States Court of
Appeals for Veterans Claims. If you also want to file a motion for
reconsideration or a motion to vacate, you will still have time to appeal
to the Court. As long as you file your motion(s) with the Board within 120
days of the date this decision was mailed to you, you will then have
another 120 days from the date the BVA decides the motion for
reconsideration or the motion to vacate to appeal to the Court. You should
know that even if you have a representative, as discussed below, it is your
responsibility to make sure that your appeal to Court is filed on time.
How do I appeal to the United States Court of Appeals for Veterans Claims?
Send your Notice of Appeal to the Court at:
Clerk, U.S. Court of Appeals for Veterans Claims
625 Indiana Avenue, NW, Suite 900
Washington, DC 20004-2950
You can get information about the Notice of Appeal, the procedure for
filing a Notice of Appeal, the filing fee (or a motion to waive the filing
fee if payment would cause financial hardship), and other matters covered
by the Court's rules directly from the Court. You can also get this
information from the Court's web site on the Internet at
www.vetapp.uscourts.gov, and you can download forms directly from that
website. The Court's facsimile number is (202) 501-5848.
To ensure full protection of your right of appeal to the Court, you must
file your Notice of Appeal with the Court, not with the Board, or any other
VA office.
How do I file a motion for reconsideration? You can file a motion asking
the BVA to reconsider any part of this decision by writing a letter to the
BVA stating why you believe that the BVA committed an obvious error of fact
or law in this decision, or stating that new and material military service
records have been discovered that apply to your appeal. If the BVA has
decided more than one issue, be sure to tell us which issue(s) you want
reconsidered. Send your letter to:
Director, Management and Administration (014)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
VA
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CONTINUED
Remember, the Board places no time limit on filing a motion for
reconsideration, and you can do this at any time. However, if you also plan
to appeal this decision to the Court, you must file your motion within 120
days from the date of this decision.
How do I file a motion to vacate? You can file a motion asking the BVA to
vacate any part of this decision by writing a letter to the BVA stating why
you believe you were denied due process of law during your appeal. For
example, you were denied your right to representation through action or
inaction by VA personnel, you were not provided a Statement of the Case or
Supplemental Statement of the Case, or you did not get a personal hearing
that you requested. You can also file a motion to vacate any part of this
decision on the basis that the Board allowed benefits based on false or
fraudulent evidence. Send this motion to the address above for the
Director, Management and Administration, at the Board. Remember, the Board
places no time limit on filing a motion to vacate, and you can do this at
any time. However, if you also plan to appeal this decision to the Court,
you must file your motion within 120 days from the date of this decision.
How do I file a motion to revise the Board's decision on the basis of clear
and unmistakable error? You can file a motion asking that the Board revise
this decision if you believe that the decision is based on "clear and
unmistakable error" (CUE). Send this motion to the address above for the
Director, Management and Administration, at the Board. You should be
careful when preparing such a motion because it must meet specific
requirements, and the Board will not review a final decision on this basis
more than once. You should carefully review the Board's Rules of Practice
on CUE, 38 C.F.R. 20.1400 -- 20.1411, and seek help from a qualified
representative before filing such a motion. See discussion on
representation below. Remember, the Board places no time limit on filing a
CUE review motion, and you can do this at any time.
How do I reopen my claim? You can ask your local VA office to reopen your
claim by simply sending them a statement indicating that you want to reopen
your claim. However, to be successful in reopening your claim, you must
submit new and material evidence to that office. See 38 C.F.R. 3.156(a).
Can someone represent me in my appeal? Yes. You can always represent
yourself in any claim before VA, including the BVA, but you can also
appoint someone to represent you. An accredited representative of a
recognized service organization may represent you free of charge. VA
approves these organizations to help veterans, service members, and
dependents prepare their claims and present them to VA. An accredited
representative works for the service organization and knows how to prepare
and present claims. You can find a listing of these organizations on the
Internet at: www.va.gov/vso. You can also choose to be represented by a
private attorney or by an "agent." (An agent is a person who is not a
lawyer, but is specially accredited by VA.)
If you want someone to represent you before the Court, rather than before
VA, then you can get information on how to do so by writing directly to the
Court. Upon request, the Court will provide you with a state-by-state
listing of persons admitted to practice before the Court who have indicated
their availability to represent appellants. This information is also
provided on the Court's website at www.vetapp.uscourts.gov.
Do I have to pay an attorney or agent to represent me? Except for a claim
involving a home or small business VA loan under Chapter 37 of title 38,
United States Code, attorneys or agents cannot charge you a fee or accept
payment for services they provide before the date BVA makes a final
decision on your appeal. If you hire an attorney or accredited agent within
1 year of a final BVA decision, then the attorney or agent is allowed to
charge you a fee for representing you before VA in most situations. An
attorney can also charge you for representing you before the Court. VA
cannot pay fees of attorneys or agents.
Fee for VA home and small business loan cases: An attorney or agent may
charge you a reasonable fee for services involving a VA home loan or small
business loan. For more information, read section 5904, title 38, United
States Code.
In all cases, a copy of any fee agreement between you and an attorney or
accredited agent must be sent to:
Office of the Senior Deputy Vice Chairman (012)
Board of Veterans' Appeals
810 Vermont Avenue, NW
Washington, DC 20420
The Board may decide, on its own, to review a fee agreement for
reasonableness, or you or your attorney or agent can file a motion asking
the Board to do so. Send such a motion to the address above for the Office
of the Senior Deputy Vice Chairman at the Board.
VA
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